Peeples v. Orkin Exterminating Co., 18201
| Decision Date | 16 April 1964 |
| Docket Number | No. 18201,18201 |
| Citation | 135 S.E.2d 845,244 S.C. 173 |
| Parties | D. I. PEEPLES, Respondent, v. ORKIN EXTERMINATING COMPANY, Inc., Appellant. |
| Court | South Carolina Supreme Court |
William H. Grimball, Jr., Charleston, for appellant.
Holland Smith, Hampton, for respondent.
Respondent, D. I. Peoples, a resident of Hampton County, instituted this action against Appellant, Orkin Exterminating Co., Inc., in the Court of Common Pleas for Hampton County.
Appellant moved for a change of venue and filed a demurrer to the complaint on the grounds that it improperly united a cause of action ex delicto with a cause of action ex contractu. After both parties submitted affidavits and argued the above motions, Judge William L. Rhodes, Jr., by Order dated August 31, 1963, overruled the demurrer and refused the motion for change of venue. This appeal is from that Order.
The complaint alleges that upon payment of the sum of $216.00 Appellant contracted in March, 1956, to thoroughly treat and destroy all existing termites in Respondent's residence and to make whatever repairs were necessary at that time to rectify damage done by termites and upon payment of an annual renewal fee of $15.00, Appellant would make an annual inspection of the residence and continue to treat the same, if necessary, for termites; that on or about the 5th day of March, 1956, Respondent paid the agreed price of $216.00 and, thereafter, continued to pay the $15.00 fee annually through 1961; that during the Spring of 1958, he discovered termites in his residence and notified Appellant of that fact, whereupon Appellant inspected and treated Respondent's residence and informed him that the termites were destroyed, that no damage was done to his residence, and that no repairs were needed. It is further alleged that subsequent to the Spring of 1958 and every Spring thereafter, Respondent discovered termites infesting his residence and that Appellant, upon notification, would treat the residence and assure Respondent that the termites were destroyed and no repairs were needed, that during the Fall of 1962, Respondent discovered his residence was being destroyed by termites and made demand upon Appellant for inspection, treatment and repairs which Appellant refused. Because of such refusal, Respondent was forced to borrow great sums of money in order to treat and destroy the termites and to make repairs to his residence. Further, that the representations, promises, acts and omissions by Appellant were made with intent to deceive and defraud, were false and known by Appellant to be false, were believed and relied on by Respondent, and that Respondent was thereby induced not to take affirmative action to save his residence, that the contract was fully performed by Respondent and that Appellant has fraudulently breached the same.
Appellant alleges that the Circuit Judge erred in overruling the demurrer to the complaint on the ground that an action ex contractu has been improperly united with an action ex delicto and is, therefore demurrable under Section 10-642(5), Code of Laws of South Carolina, 1962. Judge Rhodes held that the allegations of the complaint support an action for breach of contract accompanied by fraudulent acts.
An action for breach of contract accompanied by a fraudulent act is an action ex contractu, not ex delicto, Cain v. United Insurance Company of America, 232 S.C. 397, 102 S.E.2d 360; Ross v. American Income Life Insurance Company, 232 S.C. 433, 102 S.E.2d 743; however, it partakes of elements of both contract and tort. Being an action ex contractu, it necessarily follows the complaint must contain allegations of a breach of contract before any damages are recoverable and there must be further allegations that the breach was accompanied by a fraudulent act.
The fact that Respondent may have been able to maintain a separate action for fraud and deceit under the alleged fraudulent acts of Appellant does not necessarily change the structure of his complaint from one for breach of contract accompanied by fraudulent acts. The complaint states a cause of action for breach of contract accompanied by fraudulent acts and there was no error in overruling the demurrer.
Appellant moved to change the venue from Hampton County to Charleston County or in the alternative to Richland County on the grounds that Appellant is a domestic corporation, has no place of business, office or property in Hampton County and does not conduct business or own property in Hampton County within the meaning of the venue Statutes and has no residence for venue purposes in Hampton County.
In support of its motion Appellant offered an affidavit of the manager of its Charleston Office to the effect that Orkin Exterminating Company, Inc., is a domestic corporation with its legal residence in Richland County, that it maintains an office, owns property and transacts business in both Richland and Charleston County, and that it owns no property in Hampton County. This affidavit further states that Appellant from time to time enters into pest control contracts with persons in Hampton County and sends its agents into Hampton County to treat houses against termites and pests and to perform other work in connection with such contracts; that Appellant maintains a telephone in Hampton County, in the Ellis Realty and Insurance Company offices and pays Mr. Ellis monthly for his services in answering the telephone and taking messages. Appellant refers to this office as a 'call office' and that the only purpose of such offices is to take messages.
Respondent submitted several affidavits to the effect that Appellant is listed by name in the local telephone directory, showing the address of the Ellis Agency as its business address and this information is advertised to the public and that many residents of Hampton have done business with Appellant through initial contact with the Ellis Agency.
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...in order to be an agent. Zimmer did not have the power to bind Vanwyk. Zimmer relies primarily upon Peeples v. Orkin Exterminating Company, 244 S.C. 173, 135 S.E.2d 845 (1964), for its position that under South Carolina law, the power to contract is a necessary condition of agency. In that ......
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Weaver v. John Lucas Tree Expert Co.
...contract and a breach thereof before any damages are recoverable. Tidewater Supply Co., 171 S.E.2d at 608 (citing Peeples v. Orkin Exterminating Co., 135 S.E.2d 845 (S.C. 1964); Wharton v. Tolbert, 65 S.E. 1056 (S.C. 1909)). Likewise, to establish the existence of an employment contract, th......
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Wilson Group, Inc. v. Quorum Health Resources
...accompanied by a fraudulent act has elements of contract and tort, it is considered contractual in nature. Peeples v. Orkin Exterminating Co., 244 S.C. 173, 135 S.E.2d 845, 847 (1964). Therefore, Wilson Group's cause of action for breach of contract accompanied by a fraudulent act is govern......
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Fleming v. Asbill, 24594
...on "behalf" of the court; she does not effect legal relationships between the court and third parties. See Peeples v. Orkin Exterminating Co., 244 S.C. 173, 135 S.E.2d 845 (1964). Similarly, the relationship between the court and the guardian ad litem is not an employer-employee relationshi......